B. Satyanarayana vs Krishna Murthy

This is a tenant''s revision filed u/s 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act. 1960 (hereinafter referred to as the ''Act''). The respondent (owner) filed RC.No.686/89 before the Principal Rent Controller, Hyderabad (for short ''the Rent Controller''), seeking eviction of the petitioner from non-residential premises. The respondent alleged that the petitioner committed wilful default in payment of rents from 15-6-1987 to 14-8-1989 and that the premises are required for his personal occupation. The petitioner (tenant) resisted the petition. On behalf of the respondent, two witnesses were examined as PWs.1 and 2 and Exs.P1 to P32 were marked. On behalf of petitioner, petitioner himself and one Mr. Sri Hari were examined as RWs.1 and 2 and no documents were marked on his behalf.

On a consideration of the pleadings and the evidence on record, the Rent Controller passed an order dated 14-11-1994 ordering eviction of the petitioner. The Rent Controller found that the petitioner has committed wilful default in payment of rents. The contention of the respondent that he needs the premises for his personal occupation was not found bonafide The petitioner accordingly filed RA.No-84/1995 in the Court of the Additional Chief Judge, City Small Causes Courts, Hyderabad (for short ''the appellate Court''). The findings of the Rent Controller were confirmed by the appellate Court and though its order dated 5-7-1999, it dismissed the appeal. Aggrieved by the same, the present Civil Revision Petition is filed by the petitioner.

Mr. Pratap Narayan Sanghi, the learned counsel for the petitioner, submits that the finding of the Rent Controller on the question of wilful default was contrary to record and principles of law. He submits that there was a practice of payment of rents of several months at a time in lumpsum and if that is taken into account, the default in payment of rents by the tenant at the commencement or expiry of every month cannot be said to be wilful and it should not entail in eviction. It is further contended that the Rent Controller as well as the appellate Court have taken into account, the events that occurred subsequent to the filing of the petition and mainly relied upon the same for ordering eviction and the same cannot be sustained. In support of his contention, he relied upon various decisions of the Hon''ble Supreme Court as well as this Court.

On the other hand, the learned counsel for the respondent Mr. R. Satyanarayana Reddy, submits that the Rent Controller as well as the appellate Court, on appreciation of oral and documentary evidence, have concurrently found that the petitioner committed wilful default in payment of rents and such a finding cannot be interfered with in the revision. He has also relied upon various decisions of Hon''ble Supreme Court as well as this Court in support of his contention.

The only question that falls for consideration in this revision is whether there was wilful default on the part of the petitioner in paying the rents in respect of the premises. The learned counsel submits that it is a fact that rents were being paid at irregular intervals and in lumpsum and in view of existence of such a practice, non-payment of rents for a particular period cannot constitute wilful default.'' He submits that Ex.P32, which is a summary of payments of rent made by the petitioner from 24-8-1979 to 2-11-1988 would indicate that such practice existed. He further submits that on account of some lapse and communication gap, the irregularity in payment of rent had taken place subsequent to the filing of the petition and the same cannot be termed as wilful. He submits that, at any rate, the said fact could not have been taken into account as a subsequent event more particularly when corresponding amendment was not carried into the pleadings to incorporate the same.

It is not in dispute that rents were being paid by the petitioner in irregular intervals. There were also huge arrears of rents by the date of filing of the eviction petition. In the counter in response to the petition, he did not plead that any such practice existed. His unequivocal response was that he was regular in payment of rents. The factum of there being any arrears of rent as on the date of filing of the eviction petition was blatantly denied. Following are the excerpts from the counter, which throw light on this aspect:

"It is denied that from the inception of tenancy the respondent is most irregular in payment of the rent and it is further denied that he never paid the rent in time and also month to month.....(para 6)"

"It is denied that the respondent failed to pay the arrears of rent from 15-6-1987 to 14-8-1989 for a period of 2 years 2 months i.e., for 26 months amounting to Rs.5,590/-. At no point of time the respondent withhold the rent as alleged in the petition. When the respondent is not due, so the question of demanding by the petitioner''s mother to the respondent doesn''t arise at all (para 7)"

"The allegations made in para No.7 are equally false baseless hence denied. It is submitted that on the date of filing this eviction petition the respondent was not due any amount much less Rs.2.605/- as alleged in the eviction petition in para No.7. It is submitted that the allegations made in para No.7 are equally false, baseless hence denied. It is denied that the respondent has to pay rent from 15-8-1989 to 14-9-1989 of Rs.3.605/-are false, baseless hence denied, (para 8)"

The plea as regards the existence of any practice of paying the rents in lumpsum does not appear to have been raised before the Rent Controller. The oral evidence also is not focused on this aspect. Be that as it may, taking into account the particulars contained Ex.P32, it is to be verified whether the facts and circumstances of this case fit into the ratio of the judgments of the Hon''ble Supreme Court relied upon by the learned counsel for the petitioner.

The learned counsel for the petitioner relied upon the judgment of the Hon''ble Supreme Court in M. Naresh Kumar Vs. B. Nagalaxmi, . In that case, the landlady accepted the rents in irregular intervals for a fairly long time. She got issued a letter dated 27-1-1980 insisting on payment of rent regularly for every month. Even after the said letter, she accepted the rents at irregular intervals. The Hon''blc Supreme Court took the view that the conduct of the landlady was consistent both prior to issuance of the letter and subsequent thereto, in receiving the rents at irregular intervals and obviously by applying the principle of acquiescence, the Hon''ble Supreme Court held that in the facts and circumstances of the case, non-payment of rent for a particular period does not constitute a wilful default. In the case on hand, there was no plea in the counter, much less, in the evidence in support of the same, as to the existence of such practice. Whatever may have been the justification or its consequences with regard to payment of rents up to September, 1988, there does not appear to be any justification for the petitioner in not paying the rents or arrears subsequent thereto. It was not in dispute that up to September 1988, an amount of Rs. 4,300/- accumulated towards rent (at the rate of Rs. 215/- per month). Against this amount, the petitioner paid an amount of Rs. 2,200/- on 22-8-1989 and pleaded that it is in full and final settlement of the arrears. Even assuming that there existed any practice of payment of rents at irregular intervals, it is axiomatic to expect that such payments whenever made, should result in clearing the rents up to the date of payment. The undisputed facts reveal and establish that even after payment of Rs. 2,200/-, almost equal amount remained unpaid towards arrears of rent. This fact, if at all, would only establish that the petitioner is in the habit of paying some amounts at his will, at a time of his choice, towards part payment of rents. Such a payment cannot be treated as payment of the rents at regular intervals. The respondent was virtually at the mercy of the petitioner in the matter of receiving the rents. The petitioner not only felt the liberty in exercise of discretion as to the point of time of payment, but also the amount to be paid. Therefore, the facts of the case on hand would not at all fit into the ratio laid down by the Hon''ble Supreme Court in Naresh Kumar''s case (supra). To the same effect is the decision of the Hon''ble Supreme Court in Girijanandan Singh Parashram (Deceased) by his Lrs. Vs. New Cotton Ginning and Pressing Company, and the AP High Court in R. RAMAIAH v. M.NARASIMHA RAO 1996 (4) ALD 1072, relied on by the learned counsel for the petitioner. Therefore, the contention of the learned counsel for the petitioner cannot be accepted.

The 2nd contention of the learned counsel for the petitioner is that the Rent Controller as well as the appellate Court had relied upon subsequent events in support of the decisions arrived at by them. He submits that the same cannot be sustained. In this context, it is necessary to refer to certain facts that have come into existence subsequent to filing of the eviction petition. Alleging that even after filing of the eviction petition, the petitioner had not only failed to pay the arrears of rent that have accumulated up to the date of filing of the eviction petition, but had also failed to deposit the rents for the period subsequent to the filing of the eviction petition, the respondent filed IA.No.359/92, u/s 11 of the Act, for delivery of possession. In the enquiry in the said IA, the parties adduced oral and documentary evidence. Ultimately, a finding was recorded that the petitioner committed default in payment of rents even subsequent to the date of filing of the eviction petition and a direction was issued to him to deposit an amount of Rs. 6,185/- into the Court and pay Rs. 2,580/- to the petitioner.

Viewed in the context that the monthly rent is Rs. 215/-, the period for which the rent remained unpaid can be easily imagined. The said finding of fact became final. While disposing of the main case, the Rent Controller referred to this fact only with a view to assess the conduct of the petitioner and arriving at a conclusion as to wilful default. There is nothing to show that the finding of the Rent Controller was based upon this fact alone. At the same time, it should not be forgotten that the Hon''ble Supreme Court, way back in 1980, in Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, , laid down that in the proceedings under the Act, the courts are entitled to take subsequent events into account. The appellate Court also referred to the factum of the default subsequent to the filing of the eviction petition only to support its finding that the petitioner was not diligent in tendering the rents. The following is the discussion by the appellate Court in this regard:

"The appellant must have been diligent in tendering the rents after filing the eviction petition, but it was not so. The respondent herein filed Section 11 petition for arrears of rent to a tune of Rs.9,195/-and it was partly allowed directing the respondent/tenant to deposit a sum of Rs.6,185/- and the same was deposited by the appellant. Therefore, the above facts clearly establish that the appellant/ tenant is not diligent in tendering the rents regularly."

From what is stated above, it is evident that both the Rent Controller as well as the appellate Court have referred to the factum of filing an application u/s 11 of the Act by the respondent herein as an aggravating or non-extenuating circumstance. Their orders on this aspect were not solely based upon the subsequent events.

The learned counsel for the respondent cited several decisions, such as, SRI RAJA LAKSHMI DYEING WORKS v. RANGASWAMY (supra), GRAND BAZAR PARTNERSHIP FIRM v. PADMASHALI SEVA SAMAJAM TRUST 2000 (2) RCJ 368, M.SADIQ VALI v. P. LAKSHMAMMA AIR 1998 CJ 508, and RIZWAN AND ORS. v. ALLEEMUNNISA BEGUM 2000 (1) RCJ 513, in support of his contention that the concurrent findings of fact in such matters cannot be interfered with and that payment of rents only in pursuance of the orders of the Court by itself is a fact to establish wilful default. However, having regard to the view that I have taken as above, it is not necessary to refer to the above said decisions in detail.

I do not find any error of jurisdiction or any perversity in appreciation of evidence by the Courts below and no interference is called for. Accordingly, this Civil Revision Petition is dismissed, but in the circumstances of the case, there shall be no order as to costs. The petitioner is granted three months'' time from today to vacate the premises in question.